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New Mine Safety Measures Face Resistance Based on Longtime Strategies

Source: Washington Post

Posted on 04 Jan 2011

Labor Secretary Hilda L. Solis in the fall appeared before a gathering of coal mine owners and signaled a sharp change in the relationship between the mining industry and the federal agency charged with protecting workers.

Inspectors from Labor's Mine Safety and Health Administration, she said, will serve as "cops on the beat," patrolling mines to find safety violations. New regulations will force "bad actors to clean up their act." And owners who fail to clean up safety problems will face federal shutdown under a 33-year-old provision that has never been used before, Solis said.

With memories of the nation's worst coal mining accident still fresh -- 29 miners died at the Upper Big Branch site in West Virginia in April -- the administration is challenging coal companies to either change their tactics and voluntarily improve safety or face the harshest sanctions the government can impose.

The new push to strengthen enforcement is already encountering resistance, according to longtime watchers of the coal industry, as companies employ the same legal and political strategies they've honed over decades to block federal reforms.

In November, the MSHA went to court to try to force Massey Energy, owner of Upper Big Branch, to fix problems at another mine, which had accumulated 1,952 safety violations. The case was the first in which MSHA had tried to shutter a mine and force a safety overhaul by using the "pattern of violations" provision (POV) approved by Congress in 1977.

But before the court ruled, Massey once again sidestepped the MSHA, saying it would idle the mine on its own, thus keeping the federal government from taking control of the mine and from interfering with the company's day-to-day operations.

The MSHA says the legal action against Massey is a sign of things to come. Last month, the agency listed 13 mines in danger of shutdown under the POV provision. Massey owns three of them, more than any other operator.

After every major mining accident, said Rep. George Miller (D-Calif.), author of a now-stalled coal safety bill, "there is great emotion that pours out for families, for their tragedy, their children and their community. Everyone pledges they will make it safer. But the mine owners, they just wait and let time work and let time erode emotion, and then they come to Washington. They tell members they can't do business this way. They can't make profits this way."

Solis challenged mine owners to stop their long history of resistance. "It's easy to dig in your heels and say it's 'us against them,' the united front of the mining industry against the legislators and the regulators," she said. "It's what we've seen repeated, time and time again - a disaster happens, the public is outraged, Congress and the regulators propose reform, and industry fights back."

Joseph A. Main was still awaiting Senate confirmation as President Obama's MSHA director in February 2009 when Don Blankenship, then president of Massey, the nation's sixth-largest coal company, asked for a meeting.

An industry stalwart who took the helm of Massey in 1992, Blankenship had effectively guided his company through serious accidents and the regulatory crackdowns that followed. In most tangles with federal regulators, Blankenship - a modern-day version of the old-fashioned coal baron - had held the upper hand.

Blankenship said he met with Main to show the company's willingness to cooperate.

"We discussed the fact that we wanted to be open with them and be their safest coal company, and we wanted to work together," Blankenship said in an interview at Massey offices near Charleston, W.Va., "Nothing came out of that meeting. It was disappointing."Main, a former miners union executive and mine safety consultant, knew of Massey's troublesome safety record and its reputation for resistance. Two months later, after the explosion at the Upper Big Branch mine, the regulator and the company executive found themselves on a collision course.

The Upper Big Branch explosion led to the usual calls in Congress for mine safety reforms, with hearings documenting Massey's long record of violations at the mine and the ineffectiveness of the MSHA's regulation. Main ordered his inspectors to go into mines for unannounced inspections and liberally cite owners for safety issues.Main found Massey's mines especially worrisome.

"As we moved forward after Upper Big Branch, and we started to identify mines that were of concern, a lot of Massey mines showed up on the list. It numbered in the teens," Main said in an interview. "We went into one of these mines recently, and the air was so thick with coal dust, you couldn't see the miners who were working there."

With Massey, Main inherited a regulatory challenge that had been building for years. The company's influence had peaked during the presidency of George W. Bush, whose campaign had substantial financial backing from Massey executives. It won a major concession when Bush lifted restrictions on mountaintop removal - the practice of blowing off mountain tops to expose coal seams. Massey is the nation's largest producer of coal through the controversial technique.

Bush's MSHA chief, Dave D. Lauriski, cut the number of mining inspectors by 9 percent and trained the remaining inspectors to think of themselves as "compliance assistance specialists." Citiations for major safety issues plummeted.

Massey's approach to federal regulation has been notable for two tactics that, according to critics, allow the company to thwart or skirt safety requirements. First, Massey has persuaded regulators to forgo safety rules on a case-by-case basis. Second, the company routinely contests federal citations in a manner that makes it virtually impossible for the government to force quick safety overhauls in the nation's most hazardous mines.

Under Blankenship, Massey had mastered the art of the regulatory waiver, a way to legally circumvent federal mining laws. The MSHA has approved 30 petitions from Massey to operate its mines outside of safety mandates, more than for any other company. Most were in the past decade.

Eighteen were granted during Blankenship's tenure, five under the Obama administration.

The waivers allow Massey to mine through gas wells, to construct escapeways lower than the legally-mandated five feet and to create fewer ventilation channels to provide miners with clean air.

Massey officials say that many of their mines are old and that different approaches are needed to continue operation. In each petition, Massey used the same language to assure the MSHA "that the proposed alternative method would provide at least the same measure of protection as the mandatory standard."

But the United Mine Workers' safety director, Dennis O'Dell, and President Bill Clinton's MSHA director, J. Davitt McAteer, said the waiver system is one of most dangerous and most exploited loopholes in mine safety law. MSHA mine inspectors and district managers do the on-the-ground reviews of the requests and make the recommendations to agency headquarters. Most of the inspectors and managers come from the industry, O'Dell and McAteer said.

"These are their friends who are coming to them," McAteer said. "And these districts have been run as fiefdoms since the 1920s. You are in Washington, and you don't know the condition of the mine. It's difficult to call things off by the time it arrives on your desk."Adding to the pressure, he said, members of Congress and their staffs also call and push for the waiver petitions to be approved.